Husch v. State , 211 Ala. 274 ( 1924 )

Several witnesses testified that the deceased stated just before he made the written statement which was received in evidence as his dying declaration that he was going to die, and the declaration itself was prefaced by the statement that he believed it to be his dying statement. On this predicate the statement was properly admitted as a dying declaration. 14 Michie's Digest, 114, § 182.

The trial court admitted in evidence, over defendant's objection, the shirt, trousers, and belt worn by deceased at the time he was killed. Such articles should never be offered or received in evidence unless they "have some tendency to shed some light upon some material inquiry." Rollings v. State,160 Ala. 82, 86, 49 So. 329; Pearson's Case, 97 Ala. 219,12 So. 176; A. G. S. R. R. Co. v. Bell, 200 Ala. 562, 76 So. 920.

There was a controversy in this case as to the position of the deceased when defendant fired the second shot — that is, whether he was facing defendant, or had turned to flee. Necessarily the lethal bullet penetrated the clothing of deceased, and so far as the record shows it may have passed through both shirt and trousers. If so, these garments were properly admitted in evidence. Terry v. State, 203 Ala. 99,82 So. 113, and cases cited supra.

It may be that there was no justification for the introduction of the belt, but in any case it could do no harm when viewed in connection with the other clothing, and can furnish no ground for a reversal of the judgment.

The homicide was committed in August, and the state was allowed to show that one night in the preceding May defendant went to the witness' house and said he was down there "to have a reckoning with Black [the deceased]." It is insisted for defendant that this language does not import a threat, and was not admissible as such. The primary meaning of "reckoning" is a counting or computing; but it is also used figuratively in the sense of an "adjustment of reward or penalty on the basis of merit." New Standard Dictionary. In the latter sense it is commonly and frequently used as a prophecy or a threat of punishment, and it was for the jury to say what defendant meant by its use on this occasion, in the light of the evidence before them. We think the statement was properly admitted.

Complaint is made of other rulings on the evidence. We have examined all of them, and find no prejudicial error.

Refused charge 3 sought to exclude a conviction of murder without excluding the existence of malice, and was also argumentative.

Refused charges 5 and 12 correctly distinguished between murder and manslaughter in the first degree, but they were specifically covered by given charge 5, and also by the oral charge.

Refused charge 6 was fully covered by the oral instructions.

Refused charges 8, 9, and 11, are based on the theory that deceased made a second dying declaration in writing which was in the possession of the prosecution, and sought to instruct the jury that the failure of the prosecution to offer that statement in evidence authorized them to presume that it was less favorable to the state than the dying declaration in evidence. There was no evidence, however, that the solicitor had any such statement in his possession, or had ever even heard of its existence, or, indeed, that it was made in writing. One witness stated merely that "an officer came to the hospital and took his [deceased's] testimony in regard to the matter while we were preparing for the operation." Who the officer was, or what kind of an officer, or at whose instance he came, does not appear. Under such circumstances no presumption could arise as to the character of the statement referred to. Jackson v. State, 77 Ala. 18 (4). Moreover, if the solicitor had had such a statement in his possession, defendant could have required its production by a rule of the court if he thought it was favorable to him.

Refused charge 10 was purely argumentative.

Refused charge 14 was faulty in several details, but its entire substance and principle were fully and fairly covered by the oral charge.

Refused charge 15, on the law of self-defense, omits the predicate of a necessity, apparent or real, for the killing, and assumes the existence of peril.

Refused charge 16, on self-defense, instructs that the matter "is entirely with the jury under the law as the court has given it to you." It omits a consideration of the evidence.

Refused charges 15, 16, and 17, in so far as they invoked the principles of self-defense, were fully, fairly, and correctly covered by the oral charge.

Refused charge 18, on the mode of considering dying declarations, was an argument based on selected and partial facts, properly to be made by counsel, and not by the trial judge.

Refused charge 19, that "the law requires dying declarations to be considered with great caution," is not a proper instruction, as was expressly held in Brown v. State, 150 Ala. 25,43 So. 194. The same ruling has been made as to the consideration of admissions by a defendant. Carwile v. State,148 Ala. 576 (B), 39 So. 220. This does not deny the existence of the factors which weaken the reliability of dying declarations, and impair their value as evidence, and which have been often pointed out by courts and text-writers. See, especially, Shell v. State, 88 Ala. 14, 17, 7 So. 40; 1 Greenl. on Ev. (16th Ed.) 253, § 162; 30 Corp. Jur. 261, § 503; Id. 279, 280, § 521. And it has often been said that dying declarations should be received and weighed with caution. Shell v. State, supra; Kennedy v. State, 85 Ala. 326, 331, 5 So. 300; Justice v. State, 99 Ala. 180, 181, 13 So. 658; Parker v. State, 165 Ala. 1, 10, 51 So. 260. The jury should, of course, be instructed that a dying declaration should be considered in the light of the circumstances under which it was made, and should be given such credence as in their judgment it is entitled to receive; but the impeachment of its credibility and the impairment of its weight are matters for argument by counsel, and not for instruction by the trial judge. The objection to the instruction under consideration is that it singles out particular evidence for suspicion, and its tendency is to mislead the jury.

It is to be observed, however, that the principle invoked was in fact given to the jury in charge 20, viz. "that dying declarations are admitted in evidence out of necessity, but should be admitted and considered with real caution in connection with all the evidence."

For the reasons stated, all of the charges above reviewed were refused without error.

We find no prejudicial error in the record, and the judgment will be affirmed.

Affirmed.

ANDERSON, C. J., and THOMAS and MILLER, JJ., concur.